BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.116 of 2015

                                 Date of institution:         13.03.2015

                                                  Date of Decision:           25.08.2015

Sh. Amarjit Singh Dhunna son of Surjit Singh Dhunna, permanently residing at 15/420, Street Telian, Old Talwandi Road, Zira 142047, currently residing at HIG 906, Sector 70, Mohali (Punjab).

    ……..Complainant

                                        Versus

1.     M/s. Bajwa Developers Ltd. through its Managing Director, having its registered office at SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali, Punjab 140301.

2.     Shri Jarnail Singh Bajwa son of Shri Bishan Singh, SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali, Punjab 140301.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

ARGUMENTS HEARD AND DECIDED BY THE CORAM

Shri Amrinder Singh Sidhu, Presiding Member

Mrs. R.K. Aulakh, Member.

Present:    Ms. Rameet Bakshi, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OPs.

(Amrinder Singh Sidhu,  Presiding Member)

ORDER

                The complainant who is permanent resident of Zira but currently residing at Mohali booked a residential plot measuring 150 sq. yard in the proposed project of the OPs named as ‘New Friends Enclave’ vide registration  form dated 27.02.2012.  The complainant deposited Rs.50,000/- as booking amount for the plot vide cheque dated 27.02.2012 of HDFC Bank receipt of which was acknowledged by the OP vide receipt dated 27.02.2012. Another amount of Rs.5,31,250/- was paid by the complainant to the OPs vide cheque dated 11.04.2012.  Thereafter agreement to sell qua booking of plot of 150 sq. yards was signed between the parties on 10.04.2012. The OPs also acknowledged receipt of payment of Rs.5,81,250/- vide receipt dated 10.04.2012 on the backside of the agreement. However, this agreement was a one sided contract loaded in favour of the OPs as there was no mention of date when the possession of the plot was to be handed over to the complainant.  The OPs had assured the complainant for execution of the sale deed and handing over the possession of the plot within one year from the date of agreement to sell.  However, after signing of the agreement, the complainant did not receive any communication from the OPs intimating him about the progress of the project. Rather the complainant personally visited the OPs number of times to inquire about the status of the project and also about the permission for CLU to enable him to pay the next installment which was to be payable after CLU.   The complainant also visited the site on 15.11.2014 and found that there was no development at the site. Then the complainant wrote a detailed letter dated 18.11.2014 inquiring about the status of the plot.  Neither the Ops replied to the letter of the complainant nor they have informed him about the approvals regarding CLU.  The complainant in the meantime received allotment letter dated 09.11.2014 issued by the OPs vide which Plot No.286 measuring 150 sq. yard in T Block was allotted to him in Sector 123/124, Sunny Enclave, Mohali.  As there was no progress at the site, the complainant sent a legal notice dated 10.12.2014 to the OPs regarding deficiency in service and indulging in unfair trade practice.  The OPs have neither replied to the legal notice nor refunded him the amount of Rs.5,81,250/- till date.

                Lastly the complainant prayed for issuance of following directions to the OPs:

(a)    to refund him Rs.5,81,250/-  (which includes membership fee of Rs.50,000/-) with interest from the date of deposit till realisation.

(b)    to pay him Rs.1,00,000/- on account of mental harassment and deficiency in service.

(c)    to pay him Rs.30,000/- as costs of litigation.

2.             After the service of notice, the Ops appeared through counsel before this Forum and filed written reply to the complaint taking preliminary objections that this Forum has no jurisdiction to try the present complaint as the transaction between the complainant and OPs is purely sale agreement for sale consideration of Rs.23,25,000/-.  The complainant failed to pay the installments as per agreement. The complainant is stopped by his own act and conduct to file the complaint.  As per Clause 3 of the agreement, in case the purchaser failed to deposit the agreed amount within 15 days from the due date, the amount is liable to be forfeited.  There is no ‘Consumer-Service Provider’ relationship between the parties and the complainant is not a consumer as defined under the provisions of Consumer Protection Act.  The complainant was well aware that the approvals for the project were under process and it will take time for getting the approval and possession of the plot.  The Ops got license to develop the colony from GMADA on 05.11.2014.  On merits, the OPs have denied the averments made in the complaint and lastly they prayed for dismissal of the complaint with costs.

3.             To succeed in the complaint, the complainant proved on record affidavit Exb.CW-1/1 and tendered in evidence documents Exb.C-1 to C-13.

4.             Evidence of the OPs consists of affidavit of Jarnail Singh Bajwa, OP No.2 Exb.OP-1/1.

5.             We have heard learned counsel for the parties and we have also gone through written arguments filed by them.

6.             The complainant deposited amount of Rs. 5,81,250/- for the plot which is acknowledged by the OPs vide receipts dated 27.02.2012 and 11.04.2015 which are placed on the record as Ex C-3 and Ex C-4 respectively. It proves that the complainant booked plot size 150 Sq.yards in ‘New Friends Enclave’, Sector 124, Sunny Enclave, Mohali with the OPs for consideration. Further registration form which is Ex  C-1 and payment schedule which is Ex C-1A also proves that complainant booked  plot sized 150 Sq.Yards in ‘New Friends Enclave’ ( A Housing Group of PGI and PU Employees) located at Sunny Enclave, Sector 124, Mohali  with the OPs. In ‘payment schedule’  which is Ex C-1A, the OPs promised to the complainant at serial No.5 to provide following facilities:-

        i) Water Head Tanks  .

         ii) Sewerage Pipe Line.

        iii) Developed Parks.

        (iv) Well Furnished Road.

        (v) Street Lights.

             From the above stated documents it is clear that complainant has agreed to purchase the plot along with services and facilities. Therefore, it can safely be concluded that complainant availed the services of the OPs for consideration, hence complainant is a consumer of the OPs. The complaint is within limitation because of cause of action arose to the complainant  in November, 2014 when he received an allotment letter bearing no. BDL/KHR/ALLOT/380 dated 09.11.2014 issued by the OPs vide which plot No. 286 measuring 150 Sq.Yards in T  Block was allotted to the complainant in Sector 123/124,  Sunny Enclave, Kharar, Mohali instead of New Friends Enclave, Sector 124, Sunny Enclave, Mohali. Therefore, complaint is filed within prescribed period of limitation of two years. This Forum has pecuniary jurisdiction as the claim claimed by the complainant is less than twenty  lacs rupees and it is also within territorial jurisdiction of this Forum  because the disputed plot and agreed facilities are to be provided at Kharar which falls within the territorial jurisdiction of this Forum.

7.        The complainant main allegations are that the OPs have not got the necessary approvals and sanctions from all competent authorities  of the promised project i.e. New Friends Enclave, Sector 124, Sunny Enclave, Mohali (PB), Punjab. Further the OPs have allotted a plot to the complainant in T  Block, Sector 123/124,  Sunny Enclave District  Mohali instead of promised and agreed New Friends Enclave, Sector 124, Sunny Enclave, Mohali. The complainant has placed on record allotment letter which is Ex C-8. It is clear that the OPs have not allotted a plot to the complainant as promised and agreed in New Friends Enclave, Sector 124, Sunny Enclave, Mohali. Therefore, such allotment without the consent of the complainant amounts to unilateral allotment. Further, as per allotment letter Ex C/8 the plot is in Sector 123/124 which amounts to vague  allotment  of   plot  as  it

does not specify whether it is in Sector 123 or 124. Allotment of plot should be clear either in sector 123 or 124. Therefore, allotment of plot is bad for want of consent and such allotment of plot in T  Block , Sector 123/124, Sunny Enclave , Mohali instead of New Friends Enclave , Sector 124, Sunny Enclave, Mohali amounts to unfair trade practice on the part of the OPs. Further the OPs did not place on record any document that they have got all the necessary approvals and sanctions from all the competent authorities including CLU of Sector 124, Mohali in order to provide promised and agreed facilities to the complainant in New Friends Enclave, Sector 124, Sunny Enclave, Mohali. Therefore, the OPs are also held deficient in providing promised and agreed service to the complainant on account of lack of getting necessary approvals and sanctions from all competent authorities within  reasonable time.

8.             In view of the above said discussion, the complaint is partly allowed and the OPs are directed to:-

a)  refund the principal amount of Rs. 5,81,250/- ( Rs. Five lacs eighty one thousand two hundred and fifty only) alogn with interest @ 9% P.A. from the date of deposit till its actual realisation.

b) To pay Rs. 10,000/-( Rs. Ten thousand only) for litigation expenses.

                Compliance of this order be made within a period of forty five days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.

August 25, 2015.                    

(Amrinder Singh Sidhu)

Presiding Member

(Mrs. R.K. Aulakh)

Member   

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